Issues Raised by the US Patriot Act
and Library Policy Considerations
December 11, 2002 Satellite Teleconference,
Safeguarding our Patron’s Privacy,
Cosponsored by AALL, ALA, ARL, MLA, SLA
See www.arl.org/patriot/
Presentation to the UIUC Library Faculty
January 21, 2003
By Paul D. Callister, JD, MSLIS
Law Reference Librarian and Assistant Professor of Library Administration
THE FOLLOWING OUTLINE IS PROVIDED FOR
INFORMATIONAL PURPOSES ONLY AND SHOULD NEITHER BE
CONSTRUED AS UNIVERSITY LIBRARY POLICY NOR LEGAL
ADVICE NOR RELIED UPON IN LIEU OF CONSULTATION WITH
LEGAL COUNSEL.
I.
What are the Issues for Libraries?
A. Scope of Inquiry
1. More than Just Patriot Act: Sausage affecting 15 other
acts:
a) Electronic Communications Privacy Act of 1986
(ECPA)
b) Computer Fraud and Abuse Act of 1986 (CFFA)
c) Foreign Intelligence Surveillance Act of 1978
(FISA)
d) Family Educational Rights and Privacy Act of
1974 (FERPA)
e) Cable Television Consumer Protection and
Competition Act of 1992
f) Omnibus Crime Control and Safe Streets Act of
1968 (Wire Tap Statute)
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g) Federal Rules of Criminal Procedure
2. Influenced by the Times (Probable v. Possible) and
Changes in Law Enforcement Policy
a) 9/11 (introduced less than a week after 9/11 and
signed into law Oct. 26, 2001).
b) Attorney General John Aschoft issued revised
Guidelines on General Crimes, Racketeering
Enterprise and Terrorism Enterprise Investigations
(“FBI Guidelines”)
(1) From “’specific and articulable facts’ indicating
criminal activity” to “’reasonable indication’ of
criminal activity” to “prompt and extremely limited
checking leads”, “preliminary investigations” (up to
180 days), “criminal intelligence investigation” for
years involving “interrelation of various sources and
types of information.”
(2) At issue: searching the Internet, use of private
sector databases, attendance at public events.1
3. Other Law and Regulations Pertaining to Warrants,
Court Orders, Wire Taps, and Court Orders
a) State and Federal
b) Case Law
c) Agency Regulations and Rules
(1) Federal Rules of Criminal Procedure
4. Consider Issues in Two Capacities
a) Services to Patrons and University
b) Employer
5. Consider with respect to crime, terrorism and
1
ELECTRONIC PRIVACY INFORMATION CENTER, THE ATTORNEY GENERAL’S GUIDELINES, at
http://www.epic.org/privacy/fbi/ (last updated Dec. 2, 2002).
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intelligence gathering
a) Evidence of the Crime
b) Commission of the Crime (Computer Tresspass)
B. Major Issues
1. In General
a) Use of Warrants and Court Orders as Opposed to
Subpoena
b) Application of Various Law to Libraries
c) Records Retention, Signage and Resource Usage
Policy
d) Withdrawal of US Government Information
(1) Additional FOIA exeptions
e) Voluntary Disclosure
f) Probability v. Possibility
2. Use of Warrants and Court Orders as Opposed to
Subpoena
a) Quiz
b) Warrants
(1) For a variety of information types
(a) Basic Subscriber or Customer Information
(b) Transaction and Account Information
(c) Email
(d) Stored Voice Mail (transmitted via computer)
(e) Non-electronic (not on chart—18 USC 3103(a)
“seize any property that constitutes evidence of
criminal offense”
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(2) Extended Use (See NJ Article and Table)
(a) Nationwide for investigation of domestic or
international terrorism (any district in which
activities related to the terrorism may have occurred)
(b) Extended “basic subscriber or customer
information” to include items computer network
information (i.e., payment information, session times
and duration, identity or temporary network
addresses, email headers, etc.) See 18 USC 2703
(c)(2)
(i) What is “content?”
(a) Email headers
(b) Web addresses
(ii) Anywhere in the address chain
(c) NJ Law Rev. Article
(3) Higher Standard (“Probable Cause”)
(4) Technical Issues of Execution of a Warrant
(a) Refusal
(i) Punishable by
(a) Courts with Contempt Power
(b) Obstruction of Execution of
Process (Criminal Offense)
(ii) What constitutes refusals:
(a) To move
(b) Refuse entry
(c) Entering Premises after being
told not to
(d) “secreting” object of search
after learning of warrant
(iii) Defenses
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(a) in some jurisdictions, invalid or
irregular warrant is not invalid if
valid on its face
(b) Use of Force and “Knock and Announce” Rules
(i) Constitutional limitation (“unreasonable
search and seizure”)
(a) “must be judged by their
reaction to the circumstances as they
reasonably appear to exist to trained
law enforcement officers when the
decision to enter was made.”
(b) Generally, “knock and
announce” rule (meaning “reveal
identity to the owner, occupant or
one in rightful possession of the
property to be searched or thing
seized” (but see (b))
(c) Unless required by statute, no
requirement to exhibit, read, or even
have warrant in possession
(d) “Destruction of property that is
not reasonably necessary to execute”
the warrant (e.g., leaving cigar and
ashes in bed is not ok, breaking lock
on gun vault is ok)
(ii) Illinois Law
(a) Must knock and announce
“absent exigent circumstances”
(i) Armed or sign of violence
(ii) Probable cause
(iii) Defendant is present
(iv) Danger to police
(v) Nature of object of
warrant
(vi) Ease of destruction of
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evidence
(vii)Probability of escape
(viii)
Useless gesture
(b) No Knock Warrants
(c) “Failure to announce” is not a
per se constitutional violation (but is
a factor)
(d) Must leave copy of warrant for
items seized
(c) Who my Execute
(i) Federal civil officer “authorized to
enforce or assist in enforcing any federal
law”
(ii) Persons authorized by the president
(iii)City police (often have county countywide jurisdiction)
(iv) State use of National Guards
(v) Illinois Judge may designate specific
individual
(d) When
(i) Time may be fixed by Judge or by
Statute
(ii) May be at night
(a) Federal—in day time unless for
“reasonable cause” authorized at
night (e.g., destruction of evidence,
armed and dangerous, flight)
(b) Illinois—at any time (day or
night)
(iii)Within reasonable time
(a) Illinois (general within 96 hours)
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(e) Scope—Where, What and Who
(i) Search wrong place is a search without a
warrant.
(ii) General searches are prohibited
(iii)Unnamed items may be seized if “in
plain view, and reasonably believe constitute
evidence of a crime” or if “receptacle of a
described item (computer)” or “sufficient
nexus to the described items” or “not
practical to sort through items on the
premises”
(iv) Unnamed persons—searched only if
independent probably cause
(a) “furtive gestures and emotions”
(b) Often warrant will authorize
search any person on premises and
will name individuals
(c) Detention, apart from search, is
generally permitted (to protect from
attack, destruction and concealment
of evidence)
(f) Remedies for Unconstitutional or Unreasonable
Searches
(i) Quash evidence—for the defendants
(ii) Motion for Return of property
(a) Must show entitled to possession
(b) Can ask for receipt
(iii) Money Damages
(a) could loose right to if search was
with consent (actual or apparent
authority)
(b) not whether injury was done to
property, but rather the officers
executed search in a “reasonable
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and orderly manner”
(i) Being able to view the
search is important
(ii) Not liable for removing
obstructions if careful and
orderly manner and not guilty
of wanton destruction of
property
(iv) Personal liability of agent or officer
(a) qualified immunity in some states
(if reasonable officer possessing the
same information believed search
was lawful)
(b) good faith that warrant was valid
(v) Malicious procurement of warrant or
wrongfully causing or conducting a search is
a crime in some states
c) Court Orders
(1) Kinds (see table)
(a) Contents of wire or electronic information (with
notice, unless motion otherwise, to subscriber or
customer, which is unlike warrant) 18 USC 2703(b)
(b) Records of electronic communication service or
remote computing service (without notice) 18 USC
2703(c)—addresses, headers (what is content?)
(c) Pen/Trap Order 18 USC 3122 or 50 USC 1842
(FISA order) (real-time dialing, signaling info,
address, ports, headings).
(d) Real time communications (content) via secret
FISA orders
(2) Standard to get is lower
(a) “Specific and articulable facts”—contents or
records of wire or electronic information or remote
computing service
(b) For non-FISA Pen/Trap Order “Relevant to an
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ongoing criminal investigation”
(c) For FISA Pen/Trap Order—not a US citizen or
concerns protection against terrorism and
intelligence activities (“not solely based upon conduct
protected under the first amendment”)
(3) Non disclosure requirement for Pen Registers and
Traps
(4) Compliance with Order
(a) Presumably must be able to read and respond as
dictated
(i) Who addressed to
(ii) Timing
(iii)Items to be seized or persons and
communications covered by Pen Register or
Trap
(b) Threat of Contempt of Court
(c) Obstruction of Execution of Process
(d) Must provide assistance in installation of pen
registers and traps
(5) Remedies
(a) For Wire or Electronic Communications or
records concerning such--Motion by Service provider
that
(i) information or records requested are
unusually voluminous in nature or
(ii) compliance with such order would
cause an undue burden
(b) Reimbursement for costs
(c) Civil actions for abuse
d) Subpoena
(1) Easiest to obtain
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(a) “relevant to the investigation”
(b) FISA order
(i) “any tangible things (including books,
records, papers, documents, and other items)
for an investigation to obtain foreign
intelligence information not concerning a
United States person or to protect against
international terrorism or clandestine
intelligence activities, provided that such
investigation of a United States person is not
conducted solely up on the basis of activities
protected by the first amendment”
(ii) Non disclosure requirement
(2) Generally time to respond to subpoena
3. Application to Libraries
a) In General—Library-Patron Privilege
(1) May be statutory protections (although federal
law overrides) see
http://www.ala.org/alaorg/oif/stateprivacylaws.html
(a) 75 ILCS 70/1—registration and circulation
records of a library are confidential (must have a
court order)
(b) 5 ILCS 140/7—exempts “library circulation and
order records identifying library users with specific
material” from FOIA requests
(2) Library-patron privilege is trumped by “states
interest in well-founded criminal charges and the fair
administration of criminal justice.” Brown v.
Johnson, 328 N.W.2d 510, 512-13 (Iowa 1983), cert
denied. True even though investigation was “only
preliminary,” “no suspects were identified,” and
information was not limited “to any named library
patrons.” Subpoena sought “records of all persons
who have checked out certain books” dealing with
witchcraft and related topics.
(3) Library-patron privilege is more likely to trump
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when it is a civil suit (seeking identities of
defendants) that is the basis for the subpoena. See
Quad/Graphics v. Southern Adirondack Library
System, 664 N.Y.S. 2d 225 (NY Sup. Ct. 1997).
“Library, as the unique sanctuary of the widest
possible spectrum of ideas, must protect the
confidentiality of its records in order to insure its
readers’ right to read anything they wish, free from
fear that someone might see what they read and use
this as a way to intimidate them.”
(a) Illinois court order could permit under 5 ILCS
140/7.
b) With Respect to Disclosure of Content or Records
by Electronic Communications Services or Remote
Computer Services
(1) Bohach v. City of Reno, 932 F. Supp. 1232 (D.
Nev. 1996). Officers sought halt of investigation into
misuse of computer paging system. One of the legal
issues was whether the city and Reno Police
Department was a “provider of electronic
communications service” under a 18 USC 2701
(related to section 2703 amended by the Patriot Act).
District court found that they were ruling “the Reno
Police Department’s terminals, computer and
software, and the pagers it uses to its personnel, are,
after all, what provide those users with the ‘ability to
send or receive electronic communications.’”
(2) Crowley v. Cybersource and Amazon.com, 166 F.
Supp. 2d 1263 (N.D. Cal. 2001). Distinguished
between online merchant who communicates by
email and an electronic communication service or
remote computing service.
(3) Implications for libraries
(a) if we enable electronic communication for our
patrons or employees with software or computer
hardware, we may be found to be an electronic
communications service and subject to compliance
with warrants, orders and subpoenas of electronic
information.
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(b) How does our “no email” on public terminal
policy affect this?
(c) Even if we are not a “provider of electronics
communications service” are we a “remote computer
service”? We provide internet access and our online
catalog, ILL, and databases permit patrons to save
information (searches, etc.).
(d) How do services such as “remember search,”
“remember titles,” digital ILL, clip searches affect
us?
(e) Do circulation records themselves fall within
these sections? Not as records, but maybe as content
subject to 18 USC 2703(b).
4. Records Retention, Signage and Resource Usage
Policy
a) Why worry?
(1) Because we don’t want to be found to be an
electronic communications service or remote
computer service.
(a) Litigation strategy (not a response to an officer
with a warrant)
(b) Preserves reader’s rights
(2) May have limited effect because of other
applicable law.
b) Limit amount of work to comply
c) How do we show entitled to documents, records,
computer equipment, etc.
d) Offset reaction by other needs (i.e., use email and to
acquire information)
e) Weigh the probability
5. Withdrawal of Government Information
a) Organizations and Sites tracking removed
information
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(1) OMB Watch
http://www.ombwatch.org/article/articleview/213/1/10
4/#agency
(2) Additional FOIA exceptions
6. Voluntary Disclosure
a) Way to limit liability (?)
b) Signage
7. Probability v. Possibility
a) Less Likely
(1) Few examples in the case law to draw from
(2) Are libraries electronic communications services
or remote computer services?
b) More Likely
(1) 9-11
(2) More Aggressive Law Enforcement Policies such
as the Attorney General Guidelines
II. Our Library Policy
A. Current Draft Guidelines dated 10/21/02
1. Do they adequately address distinction between
Warrants, Orders, and Subpoena?
a) Failure to announce
b) Failure to bring or present warrant
c) Stepping away (compare to ALA guidelines)
without anything further
d) Moving if ordered
e) Not entering if so ordered
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f) Detention of and searches of persons
g) Complying with order for “immediate” delivery
h) Risk of contempt of court or obstruction of
execution of process
2. Do they address the different issues of investigations
of patrons v. investigations of employees?
a) Investigations of employees may more likely
involve
(1) searches of persons
(2) detention of persons
(3) failure to announce
3. Do they address issues such preventing damage or
loss? Or limiting liability?
a) Staying on premises
b) Asking for receipt
c) Asking for copy of warrant
d) Not giving permission
e) Voluntary disclosure to law inforcement
4. Do they address facilitating pen registers and traps?
a) Who will assist and monitor
b) Tracking hours for compensation
c) Responding to voluminous requests
5. Are the guidelines readily accessible?
6. Are staff members being trained?
7. Should we adopt the ALA guidelines? Are they
sufficient?
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B. Records Retention, Signage, Resource Usage and other
Policies
1. Does restricting email use on terminals help?
2. Does it interfere with information seeking process
3. What about catalog functions? Saved searches and
titles?
4. What about ILL digital and other requests?
5. Can we easily prove possession of documents,
records and equipment?
6. Address computer trespass
a) Voluntary disclosure (warning)
b) Other ways to limit exposure/liability (Patriot Act
only protects with respect to ECPA)
C. Tracking Information Removed by Government
Agencies
1. Should we report it?
2. Who do we report to?
3. Compliance by depository libraries
D. Role with Respect to Influencing Political Action
1. What forum and among what organizations should we
address our concerns?
2. Encourage professional organizations and take a role
in promoting legislation protecting the sanctity of the
right to read (privacy and access to information)
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